Let’s get the extension we need from EU to rethink Brexit

InFacts, 15.03.2019
David H.A. Hannay, miembro de la Cámara de los Lores y ex embajador británico (EU y ONU)

Amidst the sea of uncertainty which surrounds Brexit, this week’s votes in the Commons have given one small piece of certainty. The European Council summit in Brussels on Thursday and Friday next week will decide whether or not the UK will have an extension of the Article 50 cut-off for negotiating the its withdrawal.

Which way will the decision go? All the signals coming out of the other 27 EU capitals point towards an extension being agreed next week by all 28. Remember, this is a decision which requires our agreement as well as that of the EU27 – although postponement has now been mandated by Parliament.

This is not too surprising really. None of the other 27 EU countries have an interest in the sort of disruption and damage which would result from going over a cliff-edge on March 29. It means gaps in their budgets, a loss of rights for their citizens in the UK, trade dislocation. And do not forget that this is a decision for the 27 heads of state and government, not for the Commission and Council presidents, although their views will weigh in the balance.

So, irritated as they may be by the confusion in Westminster, the EU27 are likely to agree to an extension which costs them nothing of substance. But will the complication of the European Parliament elections on May 23 deter them? Probably not. There are a number of different legal and procedural ways of handling that complication. And the advice coming from the legal services of all the institutions is that a failure by the UK to hold such elections would not invalidate the legitimacy of the new European Parliament that will be elected in May, although it would certainly put us on the wrong side of EU law.

A less predictable question is how long will the extension be for? For three months, as Theresa May will propose in the event of her deal squeaking through the Commons next week? Or for a longer period, offering time and space to rethink some of those lamentable red lines and come up with a better deal? Or leave the extension open-ended?

None of the participants has an interest in merely postponing the cliff-edge until the end of June. And, even in the fairly unlikely event of the deal coming through its parliamentary ordeal next week, how confident can anyone be that the necessary changes to our domestic law – which have to be enacted in new primary legislation before we can finally ratify the deal – will emerge unscathed? All these considerations point away from a short, three-month extension, although of course what has once been extended can always be extended again.

Concern over the government’s ability to get further legislation, needed to actually implement any Brexit deal, through Parliament will certainly weigh on the minds of our 27 EU partners. After all, 188 of the prime minister’s own party, including cabinet ministers, voted against an extension full stop – and only 112 in favour of it – even though that would have meant ineluctably going over the cliff-edge on March 29.

Down the line, will these Conservatives happily vote for the supply motion required if the £39 billion divorce settlement is to be paid? Will they happily repeal the provision in the EU Withdrawal Act that ends the jurisdiction of the European Court of Justice on exit day? There are plenty of these stumbling blocks ahead.

Better, surely, to allow time to negotiate a different deal and time too for a public vote on any outcome which could, if it was mandatory, enable those implementation complications to be averted. Better still for the electorate to decide that, now that they know what Brexit involves, as they did not in 2016, staying in the EU might be the preferable solution.

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